Thursday, September 27, 2007

Child-torturers and the justice system

I'll be the first to admit that I'm treading in deep water here, but I'll take the chance and try to make the case: our justice system is not delivering justice. Unlike our friends on the Right, I don't think this can be attributed to "lib'rals" or "socialists" or "Trudeapianism," or whatever fancy, gimmicky label they're using at the moment to substitute for thought. But, when it comes to too many judicial decisions these days--dammit, I'm finding myself in agreement with those political opponents.

The charming fellow pictured here is named Darcy Don Bannert. He tortured a four-year-old girl for pleasure, over many months in 2005, with the active complicity of the child's mother, who assaulted her as well. He withheld water, to the point that she drank from the toilet and once tried to drink liquid Miracle-Gro fertilizer: he thought it was amusing to squirt the thirsty kid with a water bottle as she was being fed dry food. He handcuffed her to furniture, and locked her in the basement for long periods. He punched, slapped and kicked her. He made her watch pornographic videos. He regularly sexually assaulted her when she was in the bath.

Well, he and his disgusting partner were duly convicted. And here's where things get interesting, if that's the right word. The defence lawyer, who was just doing his job, argued that Bannert should get eight years minus time served, which amounts to a little over five years minus any time off for good behaviour. He cited no-doubt relevant facts: Bannert himself was an abused child, once beaten by his stepfather with a baseball bat to the point of hospitalization, and sexually assaulted while doing community service work. The prosecution wanted fifteen years. The judge sided with the defence, citing something called the "totality principle" [more on that below]. The mother got a conditional sentence--no time in jail at all. The Crown Attorney is currently appealing this wrist-slap, but not, it appears, the other one.

To listen to the judge, you'd think that the sentence for this wretch was life in prison without parole. He showed no remorse, she said. The courts must send a very strong message, she said. Translation: he'll now get to watch TV and eat three square meals a day in one of our fine penal institutions, for maybe three years or so if he watches the way he behaves in the joint and says all the right things to the prison counsellors.

The child, now six and in foster care, is suffering from long-term post-traumatic stress disorder and, not surprisingly, reactive attachment disorder, an inability to form bonds with others. She's on medication and undergoing intensive psychotherapy.

Certainly Bannert had a hard life. But so did the little girl. Nothing that happened to her was her fault. She had nothing to do with any trauma he suffered as a youth. I'm all for changing social conditions, in fact radically, to eliminate such trauma. But in the meantime, the defence lawyer's argument has been pushed too far. What do we do with such victims (meaning in this case Bannert) who have not (yet) committed any bestial crimes? Preventive detention? Ankle-bracelets? And if the Bannerts of this world are not responsible because they were once ill-treated, does that mean that someone who kills this creep isn't responsible either--just another puppet of impersonal social forces?Meanwhile, by pure happenstance, I was cruising around Darcey Jerrom's place yesterday and found this cheerful little item from his colleague, Shere Khan, which didn't improve my mood. I had begun to hope, after exemplarysentences for child abuse recently that certainly satisfied my personal thirst for justice, that the courts were getting it. But if so, the getting is pretty patchy at present.

What does "getting it" mean? That courts should behave with raw emotion, rather than principle? No. It means getting a grip on the notion of justice in the first place--in fact, on several notions.

There are three dominant models of criminal justice current today. Sometimes they are seen to be in competition; I shall argue that they need not be. The first of these is retributive justice. This is not "eye for an eye" justice, but the focus is on punishment, which, according to ill-defined notions of "proportionality," should fit the crime. The second is "restorative justice," in which the emphasis is on the victim and the community being made whole. Aboriginal sentencing circles are an example of restorative justice in action. The final model is transformative justice, which takes a systems approach to offences. Nelson's Mandela's Truth and Reconciliation Commission is an example of that approach.

What should be noted right away is that these three models are not mutually exclusive. They are all social models that seek a single outcome: the well-being of society. But they apply in different circumstances. In South Africa, a simple retributive approach would have led to possibly catastrophic consequences for the entire society. Where victims and victimizers and their society can come to an agreement over positive measures by which the victim is made whole and and the victimizer reintegrated into the community, as in the model of restorative justice, everyone benefits substantially.

But what of cases in which the victim simply cannot be made whole? What of victimizers like Bannert on whom restorative justice would be utterly wasted? In such cases, the only conceivable model that applies, in my view, is retributive justice. An appropriate punishment, following the notion of proportionality, is called for, because members of society must feel that egregiously evil acts getpunished. The social contract, in part, depends upon such understanding. Allied with that is the notion of protection of society: we want some assurance that he will not be given the opportunity to repeat his crimes.

The judge in this case applied what is called the "totality principle": this article from an Australian jurisdiction gives a sense of what that means, in theory and in practice.In layman's terms, it's supposed to be about tempering justice with mercy. But what claim, we might rightly ask, do Bannert and his spouse have on mercy? And what are the chances that someone like Bannert can be genuinely rehabilitated (rehabilitation being that problematical concept tied to mercy), rather than simply learn the right things to say to prison officials, therapists and a parole board?

In this matter both the victim and the victimizer may well be beyond repair, and society demands a punishment that fits his monstrous crimes, and some guarantee that he will not be able to repeat them. The judge no doubt looked at the whole pattern of sentencing in Canada to guide her in arriving at a "proportional" sentence. But what happens if the pattern is disproportionate as a whole? In as little as three or so years, this creature will be walking among us once more.

I would like to see a broad discussion across our country, not solely among judges, of what proportionality means concretely. We know intuitively that, for example, seven years for pushing a hall monitor at school--the way justice is still dispensed to Blacks in Texas--is disproportionate. But four and a half years for the 1994 Ottawa thrill killing of Nicholas Battersby by Brian Raymond is also disproportionate. And five years tops for Bannert, not to mention simple house arrest for the mother in the instant case, is clearly disproportionate.

This is not to say that justice should be confused with vengeance. The emotion of the moment is no basis for justice. As an opponent of capital punishment, I would still lose no sleep if someone shanked this monster his first day in the joint, and I know I'm not alone: the dispensation of law, however, needs to be somewhat more detached than that. But the connection between that dispensation and the needs of society seems to be in some need of repair. How do we fix it?

UPDATE: (September 27) Bob Tarantino confirms that Bannert is likely to be out in three years. In a personal communication, he writes:

(1) he's sentenced to eight years for sexual assault (it's not clear from the news coverage that he was convicted of any other crime);

(2) he gets the "standard" two-for-one credit for time served which gets him to five years eight months (we should note at this point that there is no obligation on a judge to credit for time served, nor to credit at the "two-for-one" rate, but most judges do it anyways);

(3) five years and eight months is 68 months total;

(4) statutory release (see here: http://www.csc-scc.gc.ca/text/faits/fac03-04_e.shtml) requires that an offender serve the last one-third of his or her sentence "in the community" - which means he would almost certainly be released after about 45 months (45 being 2/3 of 68) - I've never been clear on whether this is calculated based on the TOTAL sentence (8 years) or just the portion served after sentencing (5 years 8 months), but I don't think you end with a radically different result either way;

Sentencing in Canada is its own weird animal, and even criminal law text books don't spend a lot of time on it. This may help (taken from Kent Roach's "Criminal Law" (1996), p201): "A prisoner will generally receive earned remission, which may reduce his or her sentence by a third unless it is revoked for disciplinary reasons. In addition, a prisoner is generally eligible for full parole after serving a third of the sentence, and may be eligibile for day parole after a sixth of the sentence. For example, a prisoner sentenced to six year's imprisonment would be eligible for day parole after one year and full parole after two years."

All of which is to say, if this guy isn't out on the streets for one reason or another after three years, I, for one, would be surprised.